Jenner & Block

Team’s Amicus Brief Urges Supreme Court to Forbid the Government from Withholding Funding to Certain NGOS that Fight against HIV/AIDS

Later this month, the US Supreme Court will hear argument in a case that tests the government’s ability to require foreign affiliates of US-based organizations to affirmatively adopt the government’s viewpoint as a condition of funding.  At issue in United States Agency for International Development v. Alliance for Open Society International is the government’s attempt to withhold funding to fight HIV/AIDS abroad for any affiliate of a US. nongovernmental organization (NGO) that does not have a policy explicitly opposing prostitution and sex trafficking.  In 2013, the Court held that this policy requirement violated the First Amendment.  But the government nonetheless continued to apply the requirement against the foreign affiliates of US based NGOs on the theory that foreign organizations are not protected by the First Amendment.  In 2018, the Second Circuit recognized that the First Amendment rights of domestic NGOs are violated when their foreign affiliates are required to espouse the government’s position on prostitution and sex trafficking and enjoined the government from applying the requirement to foreign affiliates of US NGOs that share the same name, logo, branding, and mission.

The firm’s amicus brief is written on behalf of professors of public health and organizations that are active in the field of public health and in the fight against HIV/AIDS.  It urges the Court to affirm the Second Circuit’s decision, “allowing the marketplace of ideas to continue generating best practices in the fight against HIV/AIDS, regardless of ideology.”

“The anti-prostitution pledge requirement is not just bad law. It is also bad policy,” the brief states.  On behalf of the professors and public health organization, the brief argues that the “free circulation of ideas is particularly critical in the fight against HIV/AIDS, where public health researchers have found that some of the most effective strategies for combating the disease involve actively engaging sex workers as partners in the fight.”

Law clerks Grace Wallack and Juan Ruiz Toro wrote the brief, with supervision from Partner Jessie Ring Amunson.  Senior Paralegal Cheryl Olson, Legal Assistant Lisa English and Associate Manager of Docketing Services Tyler Edwards also assisted.